INTERNAP NETWORK SERVICES CORPORATION
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
OCTOBER 4, 1999
TABLE OF CONTENTS
PAGE
SECTION 1 GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 2 RESTRICTIONS ON TRANSFER; REGISTRATION. . . . . . . . . . . . . . . .3
2.1 Restrictions On Transfer . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2 Demand Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.3 Piggyback Registrations. . . . . . . . . . . . . . . . . . . . . . . . . .7
2.4 Form S-3 Registration. . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.5 Expenses Of Registration . . . . . . . . . . . . . . . . . . . . . . . . .9
2.6 Obligations Of The Company . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 Termination Of Registration Rights . . . . . . . . . . . . . . . . . . . 11
2.8 Delay Of Registration; Furnishing Information. . . . . . . . . . . . . . 11
2.9 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.10 Assignment Of Registration Rights. . . . . . . . . . . . . . . . . . . . 15
2.11 Amendment Of Registration Rights . . . . . . . . . . . . . . . . . . . . 16
2.12 Limitation On Subsequent Registration Rights . . . . . . . . . . . . . . 16
2.13 "Market Stand-Off" Agreement . . . . . . . . . . . . . . . . . . . . . . 16
2.14 Rule 144 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3 COVENANTS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . 17
3.1 Basic Financial Information And Reporting. . . . . . . . . . . . . . . . 17
3.2 Inspection Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.3 Confidentiality Of Records . . . . . . . . . . . . . . . . . . . . . . . 18
3.4 Reservation Of Common Stock. . . . . . . . . . . . . . . . . . . . . . . 19
3.5 Stock Vesting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.6 Board Election Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.7 Employee Confidentiality, Nonraiding and Noncompetition
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.8 Directors' Liability And Indemnification . . . . . . . . . . . . . . . . 19
3.9 Board Of Directors Approval. . . . . . . . . . . . . . . . . . . . . . . 19
3.10 Real Property Holding Corporation. . . . . . . . . . . . . . . . . . . . 20
3.11 Qualified Small Business Stock . . . . . . . . . . . . . . . . . . . . . 20
TABLE OF CONTENTS
(CONTINUED)
PAGE
3.12 Termination Of Covenants . . . . . . . . . . . . . . . . . . . . . . . . 20
3.13 Visitation Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4 RIGHT TO MAINTAIN INTEREST. . . . . . . . . . . . . . . . . . . . . 21
4.1 Subsequent Offerings . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.2 Exercise Of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.3 Issuance Of Equity Securities To Other Persons . . . . . . . . . . . . . 22
4.4 Termination Of Rights To Maintain Interest . . . . . . . . . . . . . . . 22
4.5 Transfer Of Rights To Maintain Interest. . . . . . . . . . . . . . . . . 22
4.6 Excluded Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.1 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.2 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.6 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.7 Delays or Omissions. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.8 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.9 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.10 Titles and Subtitles . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
INTERNAP NETWORK SERVICES CORPORATION
AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (the "Agreement") is entered into as of
the 4th day of October, 1999, by and among INTERNAP NETWORK SERVICES
CORPORATION, a Washington corporation (the "Company") and (i) INKTOMI
CORPORATION, a Delaware corporation ("Inktomi"), (ii) S.L. PARTNERS, INC., as
Agent under the Credit Agreement described herein ("S.L. Partners"), (iii)
the holders of the Company's Series C Preferred Stock ("Series C Stock")
listed on EXHIBIT A hereto, (iv) the holders of the Company's Series B
Preferred Stock ("Series B Stock") listed on EXHIBIT B hereto, and (v) the
individuals holding the Company's common stock ("Common Stock") and Series A
Preferred Stock ("Series A Stock") set forth on EXHIBIT B hereto (the
"Founders"). The parties described in clause (iii) shall be referred to
hereinafter, collectively, as the "Investors" and each individually as an
"Investor." The parties described in clauses (iv) and (v) shall be referred
to hereinafter, collectively, as the "Prior Shareholders."
RECITALS
WHEREAS, the Company has issued shares of Common Stock, Series A Stock,
Series B Stock and Series C Stock and has granted certain registration rights
to certain holders thereof pursuant to Section 2 of that certain Amended and
Restated Investor Rights Agreement dated January 28, 1999, as amended (the
"Prior Agreement");
WHEREAS, the Company proposes to sell and issue to Inktomi shares of
Common Stock and the Inktomi Warrant to purchase shares of Common Stock
pursuant to, and on terms contemplated by, that certain Common Stock and
Warrant Purchase Agreement dated September 17, 1999 (the "Inktomi Agreement");
WHEREAS, the Company proposes to issue to S.L. Partners a warrant (the
"S.L. Warrant") to purchase shares of Common Stock pursuant to, and on terms
contemplated by, that certain Credit Agreement dated September 23, 1999 (the
"Credit Agreement");
WHEREAS, as a condition of entering into the Inktomi Agreement and the
Credit Agreement, Inktomi and S.L. Partners, respectively, have requested
that the Company extend to them registration rights as set forth below; and
WHEREAS, the Company, the Investors, and the Prior Shareholders desire
to amend and restate the Prior Agreement and to accept the rights and
obligations created pursuant hereto which shall supersede the Prior Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Inktomi Agreement, the parties mutually agree as follows:
SECTION 1 GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"FOUNDERS" means all holders of Common Stock and Series A Preferred
Stock as of the date of this agreement and their authorized transferees.
"FOUNDERS' STOCK" means all Common Stock and Series A Preferred Stock of
the Company held by the Founders, upon the Closing, and any Common Stock
issued or issuable with respect to such Common Stock upon any
recapitalizations, stock splits, stock dividends or similar distributions.
"HOLDER" means any holder of outstanding Registrable Securities that
have not been sold to the public, but only if such holder is an Investor or a
holder of Series B Stock (or, solely with regards to Sections 2.3, 2.5,
2.8(b), 2.9, 2.13 and 5.6(b), a Founder) or an assignee or transferee of
registration rights in accordance with Section 2.10 hereof.
"INITIATING HOLDERS" means Holders who in the aggregate hold at least
forty percent (40%) of the Registrable Securities.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the
Securities Act.
"INKTOMI WARRANT" shall mean that certain Common Stock warrant to be
issued to Inktomi by the Company pursuant to the Inktomi Agreement.
"REGISTER," "REGISTERED" AND "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (a) Common Stock of the Company issued or
issuable upon conversion of the Shares; (b) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right
or other security which is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of, such above-described
securities; (c) Common Stock of the Company issued to Inktomi pursuant to the
Inktomi Agreement and upon exercise of the Inktomi Warrant; and (d) Common
Stock of the Company issued to S.L. Partners pursuant to the S.L. Warrant.
For purposes of the registration rights granted to holders of Company
securities pursuant to Section 2.3 hereof and for purposes of the obligations
imposed upon holders of Registrable Securities under Sections 2.9 and 2.13,
but not for the definition of Initiating Holders or for purposes of Section
5.6(a), "Registrable
2.
Securities" shall include Founders' Stock. Notwithstanding the foregoing,
Registrable Securities shall not include any securities sold by a person to
the public either pursuant to a registration statement or Rule 144 or sold in
a private transaction in which the transferor's rights under Section 2 of
this Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of shares
determined by calculating the total number of shares of the Company's Common
Stock that are Registrable Securities and either (a) are then issued and
outstanding or (b) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, reasonable fees and disbursements
not to exceed Fifteen Thousand Dollars ($15,000) of a single special counsel
for the Holders, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company).
"SEC" OR "COMMISSION" means the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to this
Agreement, as well as fees and disbursements of legal counsel for the selling
Holders, except as to those included in Registration Expenses, as defined
above.
"S.L. PARTNERS" shall mean the entity S.L. Partners, Inc. as agent under
the Credit Agreement. "S.L. Partners" shall also refer to any individual
lender under the Credit Agreement to whom rights have been transferred to
purchase Common Stock, or who has acquired Common Stock, pursuant to the S.L.
Warrant; provided that such lender acquires such rights or Common Stock, as
the case may be, in accordance with the terms of the Credit Agreement and the
S.L. Warrant; and provided further that such lender has become subject to
this Agreement in accordance with its terms.
"S.L. WARRANT" shall mean that certain warrant for the purchase of
Common Stock issued to S.L. Partners by the Company pursuant to the Credit
Agreement.
"SHARES" shall mean (i) the Company's Series B Stock held by the Prior
Shareholders as of the date hereof listed on EXHIBIT B hereto and their
permitted assigns, and (ii) the Company's Series C Stock held by the
Investors listed on EXHIBIT A hereto and their permitted assigns.
SECTION 2 RESTRICTIONS ON TRANSFER; REGISTRATION
2.1 RESTRICTIONS ON TRANSFER
(a) Each Holder, Inktomi and S.L. Partners agree not to make any
disposition of all or any portion of the Shares or Registrable Securities
unless and until:
3.
(i) There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound by
the terms of this Agreement, (B) such Holder, Inktomi or S.L. Partners, as
the case may be, shall have notified the Company of the proposed disposition
and shall have furnished the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and (C) if reasonably
requested by the Company, such Holder, Inktomi or S.L. Partners, as the case
may be, shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not
require registration of such shares under the Securities Act. It is agreed
that the Company will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances.
(iii) Notwithstanding the provisions of paragraphs (i) and
(ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder, Inktomi or S.L. Partners, as the case
may be, which is (A) a partnership to its partners or former partners in
accordance with partnership interests, (B) a corporation to its shareholders
in accordance with their interest in the corporation, (C) a limited liability
company to its members or former members in accordance with their interest in
the limited liability company, (D) to the Holder's family member or trust for
the benefit of an individual Holder or (E) an "affiliate (as defined in the
Securities Act) of such Holder, Inktomi or S.L. Partners, as the case may be,
provided that such affiliate is an "accredited investor" (as defined in the
Securities Act); (F) S.L. Partners to the lenders under the Credit Agreement
and in accordance with the S.L. Warrant; or (G) any lender under the Credit
Agreement to any family member or a trust for the benefit of such lender or a
family member of such lender; provided that in each case the transferee will
be subject to the terms of this Agreement to the same extent as if he, she or
it were an original signatory hereunder.
(b) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of the Agreement) be
stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state
securities laws or as provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without
registration, qualification or legend.
4.
(d) Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 DEMAND REGISTRATION
(a) (i) Subject to the conditions of this Section 2.2, if the
Company shall receive a written request from the Initiating Holders that the
Company file a registration statement under the Securities Act covering the
registration of at least twenty-five percent (25%) of the Registrable
Securities held by such Initiating Holders and having an aggregate offering
price to the public in excess of five million dollars ($5,000,000) (a
"Qualified Public Offering"), then the Company shall, within thirty (30) days
of the receipt thereof, give written notice of such request to all Holders
and, subject to the limitations of this Section 2.2, use its best efforts to
effect, as soon as practicable, the registration under the Securities Act of
all Registrable Securities and the Holders request to be registered.
(ii) Subject to the conditions of this Section 2.2, if the
Company shall receive a written request from Inktomi that the Company file a
registration statement under the Securities Act covering the registration of
any of the Registrable Securities held by Inktomi and having an aggregate
offering price in excess of five million dollars ($5,000,000), then the
Company shall, within thirty (30) days of the receipt thereof, give written
notice of such request to all Holders and, subject to the limitations of this
Section 2.2, use its best efforts to effect, as soon as practicable, the
registration under the Securities Act of all Registrable Securities that
Inktomi and the Holders request to be registered.
(b) If the Initiating Holders or Inktomi, as the case may be,
intend to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 2.2 or any request pursuant to Section
2.4 and the Company shall include such information in the written notice
referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such
event, the right of any Holder to include its Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder) to the extent provided herein.
Should any Holder or Inktomi, as the case may be, propose to distribute his,
her or its, securities through such underwriting, such Holder or Inktomi
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders or by Inktomi if Inktomi initiated the
registration (which underwriter or underwriters shall be reasonably
acceptable to the Company). Notwithstanding any other provision of this
Section 2.2 or Section 2.4, if the underwriter advises the Company that
marketing factors require a limitation of the number of securities to be
underwritten (including Registrable Securities) then the Company shall so
advise Inktomi and all Holders of Registrable Securities that would otherwise
be underwritten pursuant hereto, and the number of shares that may be
included in the underwriting shall be allocated,
5.
(i) in the case of an underwritten registration initiated by
the Initiating Holders, to the Holders of such Registrable Securities on a
pro rata basis based on the number of Registrable Securities held by all such
Holders (including the Initiating Holders but not including the Founders); and
(ii) in the case of an underwritten registration initiated by
Inktomi, first to Inktomi until all shares of Registrable Securities that
Inktomi desires to register are included in such registration and second to
the remaining Holders of such Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders but not including the Founders).
Any Registrable Securities excluded or withdrawn from such underwriting shall
be withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 2.2:
(i) as to any Holder, prior to October 29, 2001,
(ii) as to Inktomi, prior to one hundred eighty (180) days
following the closing of the Company's Initial Offering;
(iii) as to any Holder, after the Company has effected two
(2) registrations pursuant to Section 2.2(a)(i), and such registrations have
been declared effective;
(iv) as to Inktomi, after the Company has affected one (1)
registration pursuant to Section 2.2(a)(ii), and such registrations have been
declared or ordered effective;
(v) during the period starting with the date of the filing,
and ending on the date one hundred eighty (180) days following the effective
date, of the registration statement pertaining to the Initial Offering;
provided that the Company makes reasonable good faith efforts to cause such
registration statement to become effective;
(vi) if within thirty (30) days of receipt of a written
request pursuant to Section 2.2(a)(i) from Initiating Holders the Company
gives notice to the Holders of the Company's intention to make its Initial
Offering within ninety (90) days;
(vii) if within thirty (30) days of receipt of a written
request pursuant to Section 2.2(a)(ii) from Inktomi the Company gives notice
to Inktomi of the Company's intention to file a registration statement on
Form S-1 or Form S-3 within ninety (90) days; provided, however, that if the
Company gives the foregoing notice, then Inktomi shall be entitled to include
its Registrable Securities in such registration statement in accordance with
the provisions of Section 2.3 as if Inktomi were a "Holder" and PARI PASSU
with the Holders referred to in Section 2.3(a)(ii) who elect to participate
in such registration; or
(viii) if the Company shall furnish to Holders requesting a
registration pursuant to this Section 2.2 or to Inktomi if Inktomi is
requesting such a registration, a certificate
6.
signed by the Chairman of the Board stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental
to the Company and its shareholders for such registration statement to be
effected at such time, in which event the Company shall have the right to
defer such filing for one period of not more than ninety (90) days after
receipt of the request of the Initiating Holders or Inktomi, as the case may
be; provided, however, that such right to delay a request shall be exercised
by the Company not more than once in any twelve (12) month period.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities and S.L. Partners in writing at least thirty (30) days
prior to the filing of any registration statement under the Securities Act
for purposes of a public offering of securities of the Company (including,
but not limited to, registration statements relating to secondary offerings
of securities of the Company, but excluding registration statements relating
to employee benefit plans or with respect to corporate reorganizations or
other transactions under Rule 145 of the Securities Act) and will afford each
such Holder and S.L. Partners an opportunity to include in such registration
statement all or part of such Registrable Securities held by such Holder and
S.L. Partners; provided, however, that neither a Holder nor S.L. Partners
shall be eligible to so participate in such registration if such Holder or
S.L. Partners could have sold such Registrable Securities on an unrestricted
basis pursuant to Rule 144 of the Securities Act during the four-week period
immediately preceding the effectiveness of such registration; provided
further, that such participation right shall not be granted to any Holders or
to S.L. Partners following the fifth anniversary of the closing of the
Initial Offering. S.L. Partners and each Holder desiring to include in any
such registration statement all or any part of the Registrable Securities
held by it shall, within fifteen (15) days after the above-described notice
from the Company, so notify the Company in writing. Such notice shall state
the intended method of disposition of the Registrable Securities by S.L.
Partners or such Holder. If S.L. Partners or a Holder decides not to include
all of its Registrable Securities in any registration statement thereafter
filed by the Company, S.L. Partners and such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its scurities, all upon the terms
and conditions set forth herein.
(a) UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten offering,
the Company shall so advise S.L. Partners and the Holders of Registrable
Securities. In such event, the right of S.L. Partners and any such Holder to
be included in a registration pursuant to this Section 2.3 shall be
conditioned upon S.L. Partners' or such Holder's participation in such
underwriting and the inclusion of S.L. Partners' or such Holder's Registrable
Securities in the underwriting to the extent provided herein. S.L. Partners
and all Holders proposing to distribute their Registrable Securities through
such underwriting shall enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by
the Company. Notwithstanding any other provision of the Agreement, if the
underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, the number of shares
that may be included in the underwriting shall be allocated,
(i) first, to the Company;
7.
(ii) second, to the Holders who are (a) Investors, (b)
holders of Series B Stock, and (c) Xxxxxx X. Xxxxxx, Xx. on a pro rata basis
based on the total number of Registrable Securities held by such Holders and
Xx. Xxxxxx;
(iii) third, to Xxxxxx X. Xxxxxx, Xx.;
(iv) fourth, to Holders who are Founders (other than Xx.
Xxxxxx) on a pro rata basis based on the total number of Registrable
Securities held by such Holders; and
(v) fifth, to any other shareholders of the Company (other
than a Holder), including but not limited to S.L. Partners, on a pro rata
basis.
No such reduction shall (y) reduce the securities being offered by the
Company for its own account to be included in the registration and
underwriting, or (z) reduce the amount of securities of Xxxxxx X. Xxxxxx, Xx.
and the selling Holders who are Investors or holders of Series B Stock to
below twenty-five percent (25%) of the total amount of securities to be
included in such registration, unless such offering is the Initial Offering
and such registration does not include shares of any other selling
shareholders, in which event any or all of the Registrable Securities of the
Holders (including Xx. Xxxxxx) may be excluded in accordance with the
preceding sentence. In no event will shares of any other selling shareholder
be included in such registration which would reduce the number of shares
which may be included by Holders without the written consent of Holders of
not less than sixty-six and two-thirds percent (66 2/3%) of the Registrable
Securities proposed to be sold in the offering.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not
S.L. Partners or any Holder has elected to include securities in such
registration. The Registration Expenses of such withdrawn registration shall
be borne by the Company in accordance with Section 2.5 hereof.
2.4 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders of at least fifteen percent (15%) of the Registrable
Securities or from Inktomi a written request or requests that the Company
effect a registration on Form S-3 (or any successor to Form S-3) or any
similar short-form registration statement and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned
by such Holder, Holders, or Inktomi, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders of Registrable
Securities or to Inktomi, as the case may be; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of the
Registrable Securities of such Holder, Holders or Inktomi as are specified in
such request, together with all or such portion of the Registrable Securities
of any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company;
8.
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(i) if Form S-3 (or any successor or similar form) is not
available for such offering;
(ii) if the Holders or Inktomi, as the case may be, together
with the holders of any other securities of the Company entitled to inclusion
in such registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public, net of underwriting
costs, of less than five hundred thousand dollars ($500,000);
(iii) if the Company shall furnish to the Holders or to
Inktomi, as the case may be, a certificate signed by the Chairman of the
Board of Directors of the Company stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to
the Company and its shareholders for such Form S-3 Registration to be
effected at such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration statement for one period of not
more than ninety (90) days after receipt of the request of the Holder,
Holders or Inktomi under this Section 2.4; provided, that such right to delay
a request shall be exercised by the Company not more than once in any twelve
(12) month period;
(iv) if the Company has, within the six (6) month period
preceding the date of such request, already effected one (1) registration on
Form S-3 for the Holders or Inktomi pursuant to this Section 2.4;
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent
to service of process in effecting such registration, qualification or
compliance; or
(vi) as to Inktomi, after the Company shall have effected
two (2) registrations pursuant to Section 2.4, and such registrations have
been declared effective.
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Holders or Inktomi, as the case may be.
Subject to Section 2.5 below, all Selling Expenses incurred in connection
with registrations requested pursuant to this Section 2.4 shall be paid by
the selling Holders or Inktomi pro rata in proportion to the number of shares
sold by each, and by the Company, if it participates in such registration,
pro rata in proportion to the number of shares sold by it.
2.5 EXPENSES OF REGISTRATION. Except as specifically provided herein,
all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.2 or any registration under
Section 2.3 or Section 2.4 herein shall be borne by the Company. All Selling
Expenses incurred in connection with any registrations under those sections,
shall be borne by the holders of the securities so registered pro rata on the
basis of the number of shares so registered. The Company shall not, however,
be required to pay for expenses of any registration proceeding begun pursuant
to Section 2.2 or 2.4, the request of which has been subsequently withdrawn
by the Holders requesting such registration or Inktomi,
9.
as the case may be, unless (a) the withdrawal is based upon material adverse
information concerning the Company of which the Holders requesting such
registration or Inktomi, as the case may be, were not aware at the time of
such request or (b) the Holders of a majority of Registrable Securities or
Inktomi, as the case may be, agree to forfeit their, or its, right to one
requested registration pursuant to Section 2.2 or Section 2.4, as applicable,
in which event such right shall be forfeited by all Holders in the case of a
forfeiture by any Holder. If the Holders or Inktomi are required to pay the
Registration Expenses, such expenses shall be borne by the holders of
securities (including Registrable Securities) requesting such registration in
proportion to the number of shares for which registration was requested. If
the Company is required to pay the Registration Expenses of a withdrawn
offering pursuant to clause (a) above, then the Holders or Inktomi, as the
case may be, shall not forfeit their, or its, rights pursuant to Section 2.2
or Section 2.4 to a demand registration.
2.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to
cause such registration statement to become effective, and, upon the request
of either the Holders of a majority of the Registrable Securities registered
thereunder or of Inktomi, keep such registration statement effective for up
to ninety (90) days or, if earlier, until the Holder, Holders or Inktomi, as
the case may be, shall have completed the distribution related thereto.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Holders, Inktomi or S.L. Partners, as the case
may be, such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents as they may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them.
(d) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities
or Blue Sky laws of such jurisdictions as shall be reasonably requested by
the Holders, Inktomi or S.L. Partners, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each
Holder, Inktomi or S.L. Partners, as the case may be, participating in such
underwriting shall also enter into and perform his, her or its obligations
under such an agreement.
(f) Notify Inktomi, S.L. Partners or each Holder of Registrable
Securities covered by such registration statement at any time when a
prospectus relating thereto is required
10.
to be delivered under the Securities Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish, at the request of either a majority of the Holders
participating in the registration or Inktomi (and at the request of S.L.
Partners if already requested by the Holders or Inktomi), as the case may be,
on the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters,
on the date that the registration statement with respect to such securities
becomes effective, (i) an opinion, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration or to Inktomi, as the case may be, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities or to Inktomi, as the case may be, and (ii) a letter
dated as of such date, from the independent certified public accountants of
the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration or to Inktomi, as the case may be, addressed to the
underwriters, if any, and if permitted by applicable accounting standards, to
the Holders requesting registration of Registrable Securities or to Inktomi,
as the case may be.
2.7 TERMINATION OF REGISTRATION RIGHTS
(a) All registration rights granted to Holders and S.L. Partners
under this Section 2 shall terminate and be of no further force and effect
five (5) years after the date of the Company's Initial Offering. In
addition, the registration rights of a Holder or S.L. Partners shall expire
if (a) the Company has completed its Initial Offering and is subject to the
provisions of the Exchange Act, (b) such Holder or S.L. Partners (together
with its affiliates, partners and former partners) holds less than one
percent (1%) of the Company's outstanding Common Stock (treating all share of
convertible Preferred Stock on an as converted basis) and (c) all Registrable
Securities held by and issuable to such Holder or S.L. Partners (and its
affiliates, partners and former partners) may be sold under Rule 144 during
any ninety (90) day period.
(b) All registration rights granted to Inktomi under this Section
2 shall terminate and be of no further force and effect two (2) years after
the date of the Company's Initial Offering. In addition, the registration
rights of Inktomi shall expire if (a) the Company has completed its Initial
Offering and is subject to the provisions of the Exchange Act, (b) Inktomi
(together with its affiliates) holds less than one percent (1%) of the
Company's outstanding Common Stock and (c) all Registrable Securities held by
and issuable to Inktomi (and its affiliates) may be sold under Rule 144
during any ninety (90) day period.
2.8 DELAY OF REGISTRATION; FURNISHING INFORMATION
(a) Neither Inktomi, S.L. Partners nor any Holder shall have any
right to obtain or seek an injunction restraining or otherwise delaying any
such registration as the result
11.
of any controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the
selling Holders, S.L. Partners or Inktomi, as the case may be, shall furnish
to the Company such information regarding such Holders, S.L. Partners or
Inktomi, the Registrable Securities held by such Holders, S.L. Partners or
Inktomi and the intended method of disposition of such securities as shall be
required to effect the registration of their Registrable Securities.
(c) The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.2 or Section 2.4 if, due to the
operation of subsection 2.2(b), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's
obligation to initiate such registration as specified in Section 2.2 or
Section 2.4, whichever is applicable.
2.9 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Xxxxxx, X.X. Partners, Inktomi, the partners, officers,
directors and legal counsel of each Xxxxxx, X.X. Partners or Inktomi, any
underwriter (as defined in the Securities Act) for such Xxxxxx, X.X. Partners
or Inktomi and each person, if any, who controls such Xxxxxx, X.X. Partners,
Inktomi or underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation") by the Company: (i) any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading or (iii)
any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse Inktomi, S.L. Partners and each such Holder, partner,
officer, director, legal counsel, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section
2.9(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Company, which consent shall not be unreasonably withheld, nor
shall the Company be liable to an indemnified party for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by such indemnified party.
12.
(b) To the extent permitted by law, each Holder will, if
Registrable Securities held such Holder are included in the securities as to
which such registration qualifications or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, officers and
legal counsel, and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter, Inktomi, S.L. Partners or any
of Inktomi's or S.L. Partners' directors, officers or any person who controls
Inktomi or S.L. Partners, if any, and any other Holder selling securities
under such registration statement or any of such Holder's other partners,
directors or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, underwriter,
Inktomi, S.L. Partners or any of Inktomi's or S.L. Partners' directors or
officers or any person who controls Inktomi or S.L. Partners, if any, or
other such Holder, or partner, director, officer or controlling person of
such other Holder may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder under an instrument duly executed by such Holder and
stated to be specifically for use in connection with such registration; and
each such Holder will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, legal counsel,
controlling person, underwriter Inktomi, S.L. Partners or any of Inktomi's or
S.L. Partners' directors, officers, legal counsel or controlling person, if
any, or other Holder, or partner, officer, director, legal counsel or
controlling person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability or action if it is
judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 2.9(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the indemnifying
Holder, which consent shall not be unreasonably withheld; provided further,
that in no event shall any indemnity under this Section 2.9 exceed the
proceeds from the offering received by such Holder.
(c) To the extent permitted by law, Inktomi will, if Registrable
Securities held by Inktomi are included in the securities as to which such
registration qualifications or compliance is being effected, indemnify and
hold harmless the Company, each of its directors, officers and legal counsel,
and each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter, S.L. Partners and any other Holder selling
securities under such registration statement or any of S.L. Partners' or such
other Holder's partners, directors or officers or any person who controls
S.L. Partners or such Holder, against any losses, claims, damages or
liabilities (joint or several) to which the Company, S.L. Partners or any
such director, officer, controlling person, underwriter or other such Holder,
or partner, director, officer or controlling person of S.L. Partners or such
other Holder may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by Inktomi under an instrument duly executed by Inktomi and stated
to be specifically for use in connection with such registration; and Inktomi
will reimburse any legal or other expenses reasonably incurred by the Company
or any such director, officer, legal counsel, controlling person,
underwriter, S.L.
13.
Partners or other Holder, or partner, officer, director, legal counsel or
controlling person of S.L. Partners or such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action
if it is judicially determined that there was such a Violation; provided,
however, that the indemnity agreement contained in this Section 2.9(c) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Inktomi, which consent shall not be unreasonably withheld; provided further,
that in no event shall any indemnity under this Section 2.9 exceed the
proceeds from the offering received by Inktomi.
(d) To the extent permitted by law, S.L. Partners will, if
Registrable Securities held by S.L. Partners are included in the securities
as to which such registration qualifications or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, officers and
legal counsel, and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter, Inktomi and any other Holder
selling securities under such registration statement or any of Inktomi's or
such other Holder's partners, directors or officers or any person who
controls Inktomi or such Holder, against any losses, claims, damages or
liabilities (joint or several) to which the Company, Inktomi or any such
director, officer, controlling person, underwriter or other such Holder, or
partner, director, officer or controlling person of Inktomi or such other
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation
occurs in reliance upon and in conformity with written information furnished
by S.L. Partners under an instrument duly executed by S.L. Partners and
stated to be specifically for use in connection with such registration; and
S.L. Partners will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, legal counsel, controlling
person, underwriter, Inktomi or other Holder, or partner, officer, director,
legal counsel or controlling person of Inktomi or such other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in this
Section 2.9(d) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of S.L. Partners, which consent shall not be unreasonably
withheld; provided further, that in no event shall any indemnity under this
Section 2.9 exceed the proceeds from the offering received by S.L. Partners.
(e) Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 2.9,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests between
such indemnified party and any other party represented by such counsel in
such proceeding. The failure to deliver written notice to the indemnifying
party
14.
within a reasonable time of the commencement of any such action, if
materially prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 2.9, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 2.9.
(f) If the indemnification provided for in this Section 2.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall to the extent permitted by applicable law contribute
to the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of
the indemnified party on the other in connection with the Violation(s) that
resulted in such loss, claim, damage or liability, as well as any other
relevant equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by a court of law by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, that
in no event shall any contribution by a Xxxxxx, X.X. Partners or by Inktomi
hereunder exceed the proceeds from the offering received by such Xxxxxx, X.X.
Partners or Inktomi.
(g) The obligations of the Company, the Holders, S.L. Partners and
Inktomi under this Section 2.9 shall survive completion of any offering of
Registrable Securities in a registration statement and the termination of
this Agreement. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent
to entry of any judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all liability in respect to such
claim or litigation.
2.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may be assigned
(a) by a Holder to a transferee or assignee of Registrable Securities which
(i) previously holds Registrable Securities, (ii) is a subsidiary, parent,
general partner, limited partner or retired partner of a Holder, or is a
Holder's family member or trust for the benefit of an individual Holder, or
(iii) acquires at least Seventy-five Thousand (75,000) shares of Registrable
Securities (as adjusted for stock splits and combinations); (b) by Inktomi to
a transferee or assignee of Registrable Securities which (i) previously holds
Registrable Securities, (ii) is a subsidiary or parent of Inktomi or an
entity that controls, is controlled by or is under common control with
Inktomi, or (iii) acquires at least Seventy-five Thousand (75,000) shares of
Registrable Securities (as adjusted for stock splits and combinations) and
(c) by S.L. Partners to a transferee or assignee of Registrable Securities
which (i) previously holds Registrable Securities or (ii) is a subsidiary,
parent, general partner, limited partner, retired partner or shareholder of
S.L. Partners, or is a family member of an individual lender under the Credit
Agreement or a trust for the benefit of such lender or a family member of
such lender; provided, however, (X) the transferor shall, within ten (10)
days after such transfer, furnish to the Company written notice of the name
and address of such transferee or assignee and
15.
the securities with respect to which such registration rights are being
assigned and (Y) such transferee shall agree to be subject to all restrictions
set forth in this Agreement.
2.11 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 2 may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company, the Holders of at least sixty-six and two-thirds
percent (66 2/3%) of the Registrable Securities then outstanding; provided,
however, that any amendment adversely affecting the rights of Inktomi or S.L.
Partners, as the case may be, under this Section 2 shall require the written
consent of Inktomi or S.L. Partners, as the case may be. Any amendment or
waiver effected in accordance with this Section 2.11 shall be binding upon
Inktomi, each Holder and the Company. By acceptance of any benefits under this
Article 2, Inktomi and Holders of Registrable Securities hereby agree to be
bound by the provisions hereunder.
2.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of this
Agreement, the Company shall not, without the prior written consent of the
Holders of sixty-six and two-thirds percent (66 2/3%) of the Registrable
Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company that would grant such holder
or prospective holder rights to register its shares in any registration filed
under this Section 2, unless under the terms of such agreement, such holder or
prospective holder may include such securities only to the extent that the
inclusion of its securities will not reduce the amount of Registrable Securities
of the Holders and that is included; provided, however, if such rights are PARI
PASSU or superior to Inktomi's rights, the Company shall not enter into such
agreement granting such rights without the written consent of Inktomi.
2.13 "MARKET STAND-OFF" AGREEMENT.
(a) Each Holder, Inktomi and S.L. Partners hereby agree that it shall
not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by he, she or it (other than those included in
the registration) for a period specified by the representative of the
underwriters of Common Stock (or other securities) of the Company not to exceed
one hundred eighty (180) days following the effective date of a registration
statement of the Company filed under the Securities Act, provided that all
officers, directors and affiliates of the Company and holders of at least two
percent (2%) of the Company's voting securities enter into similar agreements.
(b) Each Holder, Inktomi and S.L. Partners agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter that are consistent with the foregoing or that are necessary to
give further effect thereto. In addition, if requested by the Company or the
representative of the underwriters of Common Stock (or other securities) of the
Company, each Holder, Inktomi and S.L. Partners shall provide, within ten (10)
days of such request, such information as may be required by the Company or such
representative in connection with the completion of any public offering of the
Company's securities pursuant to a registration statement filed under the
Securities Act. The obligations described in this Section 2.13 shall not apply
to a registration relating solely to employee benefit plans on Form S-1 or
Form S-8 or similar forms that may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction on Form S-4 or
similar forms
16.
that may be promulgated in the future. The Company may impose stop-transfer
instructions with respect to the shares of Common Stock (or other securities)
subject to the foregoing restriction until the end of said one hundred eighty
(180) day period.
2.14 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the SEC that may permit the sale of the
Registrable Securities to the public without registration, the Company agrees to
use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act; and
(c) So long as a Holder, Inktomi or S.L. Partners, as the case may
be, own any Registrable Securities, furnish to such Holder, Inktomi and S.L.
Partners forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act and with the reporting requirements of the Exchange Act (at any time after
it has become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as a Xxxxxx, X.X. Partners or Inktomi, as the case may be, may reasonably
request in availing himself, herself or itself of any rule or regulation of the
SEC allowing it to sell any such securities without registration.
2.15 REGISTRATION RIGHTS UNDER PRIOR AGREEMENT. The registration rights
contained in this Agreement set forth the sole and entire agreement among the
Company, Inktomi, S.L. Partners, the Investors and the Prior Shareholders on the
subject matter hereof and supersede any and all rights granted and covenants
made under the Prior Agreement (and the undersigned parties to the Prior
Agreement hereby amend such agreements such that the registration rights
provided for herein shall apply to all parties under the Prior Agreement).
SECTION 3 COVENANTS OF THE COMPANY
3.1 BASIC FINANCIAL INFORMATION AND REPORTING
(a) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
(b) As soon as practicable after the end of each fiscal year of the
Company, and in any event within one hundred twenty (120) days thereafter, the
Company will furnish each Investor and holder of Series B Stock a consolidated
balance sheet of the Company, as at the end of such fiscal year, and a
consolidated statement of income and a consolidated statement of cash flows of
the Company, for such year, all prepared in accordance with generally accepted
17.
accounting principles consistently applied and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail. Such financial statements shall be accompanied by a report and opinion
thereon by independent public accountants of national standing selected by the
Company's Board of Directors.
(c) The Company will furnish each Investor and holder of Series B
Stock, as soon as practicable after the end of the first, second and third
quarterly accounting periods in each fiscal year of the Company, and in any
event within forty-five (45) days thereafter, a consolidated balance sheet of
the Company as of the end of each such quarterly period, and a consolidated
statement of income and a consolidated statement of cash flows of the Company
for such period and for the current fiscal year to date, prepared in accordance
with generally accepted accounting principles, with the exception that no notes
need be attached to such statements and year-end audit adjustments may not have
been made.
(d) So long as an Investor or holder of Series B Stock (with its
affiliates) shall own at least Four Hundred Thousand (400,000) shares of
Registrable Securities (as adjusted for stock splits and combinations) (each, a
"Major Investor), the Company will furnish each such Major Investor (i) at least
thirty (30) days prior to the beginning of each fiscal year, an annual budget
and operating plans for such fiscal year (broken down by month) (and as soon as
available, any subsequent revisions thereto); and (ii) as soon as practicable
after the end of each month, and in any event within forty-five (45) days
thereafter, a consolidated balance sheet as of the end of each such month, and a
consolidated statement of income and a consolidated statement of cash flows of
the Company for such month and for the current fiscal year to date, including a
comparison to plan figures for such period, prepared in accordance with
generally accepted accounting principles consistently applied, with the
exception that no notes need be attached to such statements and year-end audit
adjustments may not have been made.
3.2 INSPECTION RIGHTS. Each Investor and holder of Series B Stock shall
have the right to visit and inspect any of the properties of the Company or any
of its subsidiaries, and to discuss the affairs, finances and accounts of the
Company or any of its subsidiaries with its officers, and to review such
information as is reasonably requested all at such reasonable times and as often
as may be reasonably requested; provided, however, that the Company shall not be
obligated to disclose information about the Company to a competitor of the
Company.
3.3 CONFIDENTIALITY OF RECORDS. Each Investor and holder of Series B
Stock agrees to use, and to use its best efforts to insure that its authorized
representatives use, the same degree of care as such Investor and holder of
Series B Stock uses to protect its own confidential information to keep
confidential any information furnished to it which the Company identifies as
being confidential or proprietary (so long as such information is not in the
public domain), except that such Investor and holder of Series B Stock may
disclose such proprietary or confidential information to any partner, subsidiary
or parent of such Investor and holder of Series B Stock for the purpose of
evaluating its investment in the Company as long as such partner, subsidiary or
parent is advised of the confidentiality provisions of this Section 3.3.
3.4 RESERVATION OF COMMON STOCK. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of the
Preferred Stock, all Common Stock issuable from time to time upon such
conversion.
18.
3.5 STOCK VESTING. Unless otherwise approved by the Board of Directors,
all stock options and other stock equivalents issued after the date of this
Agreement to employees, directors, consultants and other service providers shall
be subject to vesting as follows: (a) twenty-five percent (25%) of such stock
shall vest at the end of the first year following the earlier of the date of
issuance or such person's services commencement date with the company, and
(b) seventy-five percent (75%) of such stock shall vest in equal monthly
increments over the remaining three (3) years. With respect to any shares of
stock purchased by any such person, the Company's repurchase option shall
provide that upon such person's termination of employment or service with the
Company, with or without cause, the Company or its assignee (to the extent
permissible under applicable securities laws and other laws) shall have the
option to purchase at cost any unvested shares of stock held by such person.
3.6 BOARD ELECTION RIGHTS. For so long as H&Q InterNAP Investors, LP and
TI Ventures, LP ("H&Q") collectively hold at least one million (1,000,000)
shares of Registrable Securities, H&Q shall have the right to designate one
(1) nominee to be elected to the Board of Directors at each election of
directors. For so long as Xxxxxx Xxxxxxx Venture Partners ("MSVP") holds at
least one million (1,000,000) shares of Registrable Securities, MSVP shall have
the right to designate one (1) nominee to be elected to the Board of Directors
at each election of directors.
3.7 EMPLOYEE CONFIDENTIALITY, NONRAIDING AND NONCOMPETITION AGREEMENT.
The Company shall require all employees and consultants to execute and deliver
an Employee Confidentiality, Nonraiding and Noncompetition Agreement and an
Employee Inventions Agreement in the forms attached as EXHIBIT F-1 and F-2,
respectively, to that certain Series C Preferred Stock Purchase Agreement dated
January 28, 1999 (the "Series C Purchase Agreement") or Proprietary Information
and Inventions Agreement.
3.8 DIRECTORS' LIABILITY AND INDEMNIFICATION. The Company's Articles of
Incorporation and Bylaws shall provide (a) for elimination of the liability of
director to the maximum extent permitted by law and (b) for indemnification of
directors for acts on behalf of the Company to the maximum extent permitted by
law.
3.9 BOARD OF DIRECTORS APPROVAL. The Company shall not, without the
approval of a majority of the Board of Directors, with all directors voting,
take any of the following actions:
(a) incur any debt or obligation, including capital lease or purchase
obligations, in excess of two hundred fifty thousand dollars ($250,000);
(b) initiate or establish any compensation program or plan, including
any program or plan concerning the base salary or bonus of officers;
(c) establish any stock option plans or programs or award any stock
options pursuant to such programs or plans;
(d) hire or appoint any officers of the Company;
(e) enter into any agreement for the purchase or lease of any real
estate; or
19.
(f) implement or revise any annual budget or other operating plan.
3.10 REAL PROPERTY HOLDING CORPORATION. The Company covenants that it will
operate in a manner such that it will not become a "United States real property
holding corporation" ("USRPHC") as that term is defined in Section 897(c)(2) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder
(the "Code"). The Company agrees to make determinations as to its status as a
USRPHC, and will file statements concerning those determinations with the
Internal Revenue Service, in the manner and at the times required under Reg.
Section 1.897-2(h), or any supplementary or successor provision thereto. Within
thirty (30) days of a request from an Investor or any of its partners, the
Company will inform the requesting party, in the manner set forth in Reg.
Section 1.897- 2(h)(1)(iv) or any supplementary or successor provision thereto,
whether that party's interest in the Company constitutes a United States real
property interest (within the meaning of Section 897(c)(1) of the Code and the
regulations thereunder) and whether the Company has provided to the Internal
Revenue Service all required notices as to its USRPHC status.
3.11 QUALIFIED SMALL BUSINESS STOCK. The Company covenants that so long as
any of the shares of Series C Preferred Stock, or the Common Stock into which
such shares are converted, are held by an Investor (or authorized transferee in
whose hands such shares or Common Stock are eligible to qualify as Qualified
Small Business Stock as defined in Section 1202(c) of the Code), it will use
commercially reasonable efforts (including complying with any applicable filing
or reporting requirements imposed by the Code on issuers of Qualified Small
Business Stock) to cause such shares of Series C Preferred Stock, or the Common
Stock into which they are converted, to qualify as Qualified Small Business
Stock; provided, however, that "commercially reasonable efforts" as used in this
Section 3.29 shall not be construed to require the Company to operate its
business in a manner that would adversely affect its business, limit its future
prospects or alter the timing or resource allocation related to its planned
operations or financing activities.
3.12 TERMINATION OF COVENANTS. All covenants of the Company contained in
this Section 3 of this Agreement shall expire and terminate as to each Investor
and holder of Series B Stock upon the earlier of (i) the effective date of the
registration statement pertaining to the Initial Offering or (ii) upon (a) the
sale, lease or other disposition of all or substantially all of the assets of
the Company or (b) an acquisition of the Company by another corporation or
entity by consolidation, merger or other reorganization in which the holders of
the Company's outstanding voting stock immediately prior to such transaction
own, immediately after such transaction, securities representing less than fifty
percent (50%) of the voting power of the corporation or other entity surviving
such transaction, PROVIDED THAT this Section 3.11(ii)(b) shall not apply to a
merger effected exclusively for the purpose of changing the domicile of the
Company (a "Change in Control").
3.13 VISITATION RIGHTS. So long as Fidelity Investors II Limited
Partnership and FTT Ventures Inc. or their affiliates (collectively, "Fidelity")
shall own 666,667 shares of Series C Preferred Stock, the Company shall allow
one representative designated by Fidelity to attend all meetings of the
Company's Board of Directors in a nonvoting capacity, and in connection
therewith, the Company shall give such representative copies of all notices,
minutes, consents and other materials, financial or otherwise, which the Company
provides to its Board of
20.
Directors; provided, however, that the Company reserves the right to exclude
such representative from access to any material or meeting or portion thereof
if the Company believes upon advice of counsel that such exclusion is
reasonably necessary to preserve the attorney-client privilege, to protect
highly confidential proprietary information or for other similar reasons.
SECTION 4 RIGHT TO MAINTAIN INTEREST
4.1 SUBSEQUENT OFFERINGS. Each Investor and holder of Series B Stock
shall have a right to purchase its Pro Rata Share (as defined herein) of all
Equity Securities, as defined below, that the Company may, from time to time,
propose to sell and issue after the date of this Agreement, other than the
Equity Securities excluded by Section 4.6 hereof. The Company may, at its
election, sell such Investor and holder of Series B Stock its Pro Rata Amount of
Equity Securities at the initial closing of the sale of Equity Securities or at
a subsequent closing of which shall take place within ninety (90) days of the
initial closing. The Pro Rata Share of an Investor and holder of Series B
Stock shall be equal to the ratio of (a) the number of shares of the Company's
Common Stock (including all shares of Common Stock issued or issuable upon
conversion of the Preferred Stock) which such Investor and holder of Series B
Stock is deemed to hold immediately prior to the issuance of such Equity
Securities to (b) the total number of shares of the Company's outstanding Common
Stock (including all shares of Common Stock issued or issuable upon conversion
of the Preferred Stock) immediately prior to the issuance of the Equity
Securities. The term "Equity Securities" shall mean (i) any Common Stock,
Preferred Stock or other security of the Company, (ii) any security convertible,
with or without consideration, into any Common Stock, Preferred Stock or other
security (including any option to purchase such a convertible security),
(iii) any security carrying any warrant or right to subscribe to or purchase any
Common Stock, Preferred Stock or other security or (iv) any such warrant or
right.
4.2 EXERCISE OF RIGHTS. If the Company proposes to issue any Equity
Securities, it shall give each Investor and holder of Series B Stock written
notice before such issuance or within ten (10) days thereafter, describing the
type of Equity Securities, the price and number of shares and the general terms
and conditions upon which the Company proposes to issue or has issued the same.
Each Investor and holder of Series B Stock shall have thirty (30) days from the
giving of such notice to agree to purchase up to the amount of Equity Securities
equal to Pro Rata Share of such Equity Securities of the Investor and holder of
Series B Stock for the price and upon the general terms and conditions specified
in the notice by giving written notice to the Company and stating therein the
quantity of Equity Securities to be purchased. Any such purchase shall occur at
the initial closing of the sale of Equity Securities or, at the Company's
election, at a subsequent closing within ninety (90) days of the initial
closing. Notwithstanding the foregoing, the Company shall not be required to
offer or sell such Equity Securities to any Investor and holder of Series B
Stock who would cause the Company to be in violation of applicable federal
securities laws by virtue of such offer or sale.
4.3 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If not all of the
Investors and holders of Series B Stock elect to purchase their Pro Rata Share
of the Equity Securities, then the Company shall promptly notify in writing the
Investors and holders of Series B Stock who do so elect and shall offer such
Investors and holders of Series B Stock the right to acquire such unsubscribed
shares. Each Investor and holder of Series B Stock shall have fifteen (15) days
21.
after receipt of such notice to notify the Company of its election to purchase
all or a portion thereof of the unsubscribed shares. If the Investors and
holders of Series B Stock fail to exercise in full the right to maintain
interest within said forty-five (45) day period set forth in Section 4.2 and
4.3, the Company shall have ninety (90) days thereafter to sell the Equity
Securities in respect of which the rights of the Investors and holders of
Series B Stock were not exercised, at a price and upon general terms and
conditions no more favorable to the purchasers thereof than specified in the
Company's notice to the Investors and holders of Series B Stock pursuant to
Section 4.2 hereof. If the Company has not sold such Equity Securities within
ninety (90) days of the notice provided pursuant to Section 4.2, the Company
shall not thereafter issue or sell any Equity Securities without first offering
such securities to the Investors and holders of Series B Stock in the manner
provided above.
4.4 TERMINATION OF RIGHTS TO MAINTAIN INTEREST. The rights to maintain
interest established by this Section 4 shall not apply to, and shall terminate
upon (i) the effective date of the registration statement pertaining to the
Initial Offering or (ii) a Change in Control.
4.5 TRANSFER OF RIGHTS TO MAINTAIN INTEREST. The rights to maintain
interest of each Investor and holder of Series B Stock under this Section 4 may
be transferred to the same parties, subject to the same restrictions as any
transfer of registration rights pursuant to Section 2.10.
4.6 EXCLUDED SECURITIES. The rights to maintain interest established by
this Section 4 shall have no application to any of the following Equity
Securities:
(a) shares of Common Stock (and/or options, warrants or other Common
Stock purchase rights issued pursuant to such options, warrants or other rights)
issued or to be issued to employees, officers or directors of, or consultants or
advisors to the Company or any subsidiary, pursuant to stock purchase or stock
option plans or other arrangements that are approved by a majority of the entire
Board of Directors;
(b) stock issued pursuant to any rights or agreements outstanding as
of the date of this Agreement, options and warrants outstanding as of the date
of this Agreement; and stock issued pursuant to any such rights or agreements
granted after the date of this Agreement, provided that the rights to maintain
interest established by this Section 4 applied with respect to the initial sale
or grant by the Company of such rights or agreements;
(c) capital stock or warrants or options to purchase capital stock
issued in connection with bona fide acquisitions, mergers or similar
transactions, the terms of which are approved by a majority of the entire Board
of Directors of the Corporation;
(d) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of the Shares;
(f) capital stock, or options or warrants to purchase capital stock,
issued to financial institutions or lessors in connection with commercial credit
arrangements, equipment financings or any similar transactions approved by a
majority of the entire Board of Directors;
22.
(g) shares of Common Stock issued in a public offering prior to or in
connection with which all outstanding shares of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock will be converted to
Common Stock;
(h) shares of Common Stock and the Inktomi Warrant issued to Inktomi
pursuant the Inktomi Agreement and the Common Stock issued on the exercise of
the Inktomi Warrant; and
(i) the S.L. Warrant and shares of Common Stock issued upon exercise
of the S.L. Warrant and on conversion of the loan made pursuant to the Credit
Agreement.
SECTION 5 MISCELLANEOUS
5.1 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Washington as applied to agreements among
Washington residents entered into and to be performed entirely within
Washington.
5.2 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
5.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
5.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules hereto,
the Inktomi Agreement, the Series C Purchase Agreement and the other documents
delivered pursuant thereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and no party
shall be liable or bound to any other in any manner by any representations,
warranties, covenants and agreements except as specifically set forth herein and
therein.
5.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
23.
5.6 AMENDMENT AND WAIVER
(a) Except as otherwise expressly provided and subject to
Section 5.6(b) below, this Agreement may be amended or modified only upon the
written consent of the Company and the Holders of at least sixty-six and
two-thirds percent (66 2/3%) of the Registrable Securities.
(b) Except as otherwise expressly provided, no amendment or
modification of this Agreement shall adversely affect the rights of the Holders
under this Agreement without the written consent of the Holders of at least
sixty-six and two-thirds percent (66 2/3%) of the Registrable Securities.
(c) Notwithstanding the foregoing, this Agreement may be amended with
only the written consent of the Company to include additional purchasers of
Shares as "Investors," "Holders" and parties hereto.
5.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any Holder upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law or otherwise afforded to Holders, shall be cumulative and not
alternative.
5.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed facsimile if sent during
normal business hours of the recipient; if not, then on the next business day,
(c) five (5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the party
to be notified at the address as set forth on the signature pages hereof or
EXHIBIT A or EXHIBIT B hereto or at such other address as such party may
designate by ten (10) days advance written notice to the other parties hereto.
5.9 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
5.10 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
24.
5.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
25.
IN WITNESS WHEREOF, the parties hereto have executed this Investor Rights
Agreement as of the date set forth in the first paragraph hereof.
COMPANY:
INTERNAP NETWORK SERVICES CORPORATION
By: /s/ Xxxx X. XxXxxxx
------------------------------------
Name: Xxxx X. XxXxxxx
----------------------------------
Title: Vice President and Secretary
---------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INKTOMI CORPORATION
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: Vice President of Marketing
---------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SL PARTNERS, INC.
AS AGENT UNDER THE CREDIT AGREEMENT DATED AS OF
SEPTEMBER 23, 1999
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------------
Title: Managing Partner
---------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INVESTORS:
XXXXXX XXXXXXX VENTURE PARTNERS III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.
Its: General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.
Its: Institutional Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Managing Member
--------------------------------------
XXXXXX XXXXXXX VENTURE INVESTORS III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.
Its: General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.
Its: Institutional Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Managing Member
--------------------------------------
THE XXXXXX XXXXXXX VENTURE PARTNERS
ENTREPRENEUR FUND, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.
Its: General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.
Its: Institutional Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Managing Member
--------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
OAK INVESTMENT PARTNERS VIII, LIMITED
PARTNERSHIP
By: Oak Associates VIII, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Managing Member
OAK VIII AFFILIATES FUND, LIMITED PARTNERSHIP
By: Oak VIII Affiliates, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Managing Member
FIDELITY INVESTORS II LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
FTT VENTURES LIMITED
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
GC&H INVESTMENTS
By:
------------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------------
Title: Executive Partner
-----------------------------------
EVEREN SECURITIES, INC. CUSTODIAN FBO
XXXXXX X. XXXX, M.D., XXXX XXX
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KIRLAN VENTURE CAPITAL, INC.
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KIRLAN VENTURE PARTNERS II, L.P.
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-----------------------------------------
XXXX X. XXXXXXX
REGIS FAMILY LIMITED PARTNERSHIP
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
XXXXXXX INVESTORS, LLC
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BRINC LLC
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-----------------------------------------
XXXX XXXXXXX
-----------------------------------------
XXXXXXXX X. XXXXX
-----------------------------------------
XXXXX XXXXXXXXX
-----------------------------------------
XXXXXX XXXXXX
-----------------------------------------
XXXXX XXXXXX
XXXXXX X. XXXXXX & XXXXXXXX XXXXX-XXXXXX XX
TEN
-----------------------------------------
XXXXXX X. XXXXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
-----------------------------------------
XXXXXXXX XXXXX-XXXXXX
DOLL TECHNOLOGY INVESTMENT FUND
By: /s/ Xxxxx R. Doll
--------------------------------------
Name: Xxxxx X. Xxxx
------------------------------------
Title: Managing Member
-----------------------------------
DOLL TECHNOLOGY AFFILIATES FUND, LP
By: /s/ Xxxxx R. Doll
--------------------------------------
Name: Xxxxx X. Xxxx
------------------------------------
Title: Managing Member
-----------------------------------
DOLL TECHNOLOGY SIDE FUND, LP
By: /s/ Xxxxx R. Doll
--------------------------------------
Name: Xxxxx X. Xxxx
------------------------------------
Title: Managing Member
-----------------------------------
-----------------------------------------
XXXXXXXXX XXXX
GAK LIMITED
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
H&Q INTERNAP INVESTORS, L.P.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Attorney-in-Fact
--------------------------------------
THE XXXX XXXXX MELLEA SEPARATE PROPERTY TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
XXXXXX XXXX
---------------------------------------------
XXXX XXXXXXX
---------------------------------------------
XXXXXXX X. XXXXXXX
---------------------------------------------
XXX XXXXXX
---------------------------------------------
XXXX XXXXXX
XXX AND XXXXX XXXXXXXX JT TEN
---------------------------------------------
XXX XXXXXXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
---------------------------------------------
XXXXX XXXXXXXX
---------------------------------------------
XXX XXXXXXXXXX
PS CAPITAL VENTURES, LP
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
----------------------------------------
Title: Principal
---------------------------------------
---------------------------------------------
XXXXXXX XXXXX
SEAPOINT VENTURES, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PS CAPITAL VENTURES, LP
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE XXXXXXXXX FAMILY TRUST, XXXXXX X.
XXXXXXXXX, XX. AND XXXXX X. XXXXXXXXX
TRUSTEES
By:
-----------------------------------------
Name:
---------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Title:
--------------------------------------
---------------------------------------------
XXXXXX X. XXXXXXXXX, XX.
---------------------------------------------
XXXXX X. XXXX
---------------------------------------------
XXXX XXXXX
THE XXXXXX X. XXXXXXX REVOCABLE LIVING TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
XXXXXXXXXX X. XXXXX
TI VENTURES, L.P.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
---------------------------------------------
XXXX XXXXXX
---------------------------------------------
XXXXX XXXXXXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SERIES B PREFERRED SHAREHOLDERS:
PS CAPITAL HOLDINGS, L.P.
By: PS Capital, Inc.
By:
-----------------------------------------
Xxxxxxx X. Xxxxx
Vice President
---------------------------------------------
XXXXXXXX X. XXXXX
---------------------------------------------
XXXXX X. XXXXXXXXX
---------------------------------------------
XXXXXX XXXXXX
---------------------------------------------
XXXXX XXXXXX
---------------------------------------------
XXXXXX X. XXXXXX
THE XXXXXX X. XXXXXXX REVOCABLE LIVING TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THE XXXXXX X. XXXXXXX CHARITABLE REMAINDER
TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
XXX XXXXXXXXXX
XXXXXX AND XXXXX XXXX TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
XXX XXXXXX
---------------------------------------------
XXXXXX X. XXXXXXXXX, XX.
THE XXXXXXXXX XXXXXXXXX EDUCATION TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
XXXX XXXXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
H&Q INTERNAP INVESTORS, L.P.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Attorney-in-Fact
--------------------------------------
TI VENTURES, LP
By: /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Attorney-in-Fact
--------------------------------------
KIRLAN I
By: Kirlan Venture Capital, Inc.
Its:
-----------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
KIRLAN VENTURE PARTNERS II, L.P.
By: Kirlan Venture Capital, Inc.
Its:
-----------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
XXXXXXX INVESTORS, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GAK LIMITED
By:
-----------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Title: General Partner
--------------------------------------
DOLL TECHNOLOGY INVESTMENT FUND
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx R. Doll
---------------------------------------
Title: Managing Member
--------------------------------------
DOLL TECHNOLOGY AFFILIATES FUND, L.P.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx R. Doll
---------------------------------------
Title: Managing Member
--------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
DOLL TECHNOLOGY SIDE FUND, L.P.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx R. Doll
---------------------------------------
Title: Managing Member
--------------------------------------
BRINC LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE XXXX XXXXX MELLEA SEPARATE PROPERTY TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE XXXXX TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXXXXXXXX XXXXX AND XXXXXXXXX XXXXXXXXX
---------------------------------------------
XXXXXXXXXXX XXXXX
---------------------------------------------
XXXXXXXXX XXXXXXXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
---------------------------------------------
XXXXXXXX X. XXXXXXXXX
---------------------------------------------
XXXXXXX XXXXX
XXX AND XXXXX XXXXXXXX
---------------------------------------------
XXX XXXXXXXX
---------------------------------------------
XXXXX XXXXXXXX
---------------------------------------------
XXXX XXXXXXX
---------------------------------------------
XXXX XXXXXXX
---------------------------------------------
XXXX XXXXX
---------------------------------------------
XXXXXXX XXXXX
---------------------------------------------
XXXXXX XXXX
---------------------------------------------
XXXXX XXXXXXXX
---------------------------------------------
XXXXXXXXX XXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
---------------------------------------------
XXXX XXXXXX
XXXX AND XXX XXXXXX
---------------------------------------------
XXXX XXXXXX
---------------------------------------------
XXX XXXXXX
XXXXXX IRREVOCABLE TRUST
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
XXXXXXX XXXXXXXXX
---------------------------------------------
XXXXXX X. XXXXXXXXX
---------------------------------------------
XXXXX X. XXXXXXXXX
---------------------------------------------
XXXX X. XXXXXXX
XXXXX XXXX XXXXXXXXX'X CHILDREN'S TRUST
By:
-----------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
XXXXXXXXXX X. XXXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SERIES A PREFERRED SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------------------
XXXXXX X. XXXXXX, XX.
---------------------------------------------
XXXXXX XXXXXX
---------------------------------------------
XXXX X. XXXXXXX
---------------------------------------------
XXXXX XXXXXXX
XXXX X. XXXXXXX, CUSTODIAN FBO XXXXX X.
XXXXXXX UTMA
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXX X. XXXXXXX, CUSTODIAN FBO XXXX X.
XXXXXXX UTMA
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXXXXX FAMILY L.L.C.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
COMMON STOCK SHAREHOLDERS:
---------------------------------------------
XXXXXXX X. NAUGTIN
/s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------------------
XXXXXXXXXXX X. XXXXXXX
CDW LIMITED PARTNERSHIP
By: CDW Services, Inc.
General Partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
---------------------------------------
Title: President
--------------------------------------
---------------------------------------------
XXXX X. XXXXXXX
---------------------------------------------
XXXXX X. XXXXXXXX
---------------------------------------------
OPHIR RONEN
---------------------------------------------
XXX XXXXXXXXXXX
---------------------------------------------
XXXXXXXX XXXXXX
---------------------------------------------
XXX XXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
FOUNDERS:
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------------------
XXXXXX X. XXXXXX, XX.
---------------------------------------------
XXXX X. XXXXXXX
---------------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------------------
XXXXXXXXXXX X. XXXXXXX
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
EXHIBIT A
INVESTORS
SERIES C PREFERRED SHAREHOLDERS
Xxxxxx Xxxxxxx Venture Partners III, X.X.
Xxxxxx Xxxxxxx Venture Investors III, L.P.
The Xxxxxx Xxxxxxx Venture Partners Entrepreneur Fund, L.P.
Oak Investment Partners VIII, Limited Partnership
Oak VIII Affiliate Fund, Limited Partnership
Fidelity Investors II Limited Partnership
FTT Ventures Limited
Xxxxxxx Investors, LLC
BRINC LLC
Xxxx Xxxxxx
Xxxxxxxx X. Xxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx & Xxxxxxxx Xxxxx-Xxxxxx XX TEN
Doll Technology Affiliates Fund, LP
Doll Technology Investment Fund
Doll Technology Side Fund, LP
Xxxxxxxxx Xxxx
Everen Securities, Inc. Custodian FBO Xxxxxx X. Xxxx, M.D., Xxxx XXX
GAK Limited
GC&H Investments
H&Q InterNAP Investors, L.P.
The Xxxx Xxxxx Mellea Separate Property Trust
Xxxxxx Xxxx
Kirlan Venture Capital, Inc.
Kirlan Venture Partners II, LP
Xxxx Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxx Xxxxxx
Xxxx Xxxxxx
Xxx and Xxxxx Xxxxxxxx, JT TEN
Xxx Xxxxxxxxxx
PS Capital Ventures, LP
Regis Family Limited Partnership
Xxxxxxx Xxxxx
Seapoint Ventures LLC
The Xxxxxxxxx Family Trust, Xxxxxx X. Xxxxxxxxx, Xx. and Xxxxx X. Xxxxxxxxx
Trustees
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxx X. Xxxx
Xxxx Xxxxx
The Xxxxxx X. Xxxxxxx Revocable Living Trust
Xxxxxxxxxx X. Xxxxx
TI Ventures, LP
Vulcan Ventures Incorporated
Xxxx Xxxxxx
Xxxxx Xxxxxxxx
EXHIBIT B
PRIOR SHAREHOLDERS
SERIES B PREFERRED SHAREHOLDERS
H&Q InterNAP Partners, LP
H&Q InterNAP Investors, L.P.
TI Ventures, XX
Xxxxxx I
Kirlan Venture Partners II, L.P.
PS Capital Holdings, L.P.
Vulcan Ventures Incorporated
Xxxxxxx Investors, LLC
Xxxxxxxx X. Xxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx
GAK Limited
The Xxxxxx X. Xxxxxxx Revocable Living Trust
Xxxxxx X. Xxxxxxx Charitable Remainder Trust
Xxxxxx and Xxxxx Xxxx Trust
Xxx Xxxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxx Xxxxxx
BRINC LLC
Xxx Xxxxxxxxxx
Xxxxxxx Xxxxx
Xxx and Xxxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxx Xxxxxxxx
Doll Technology Affiliates Fund, LP
Doll Technology Side Fund, LP
Doll Technology Investment Fund
Xxxxxxxxx Xxxx
Xxxx Xxxxxx
The Xxxx Xxxxx Mellea Separate Property Trust
The Xxxxxxxxxxx and Xxxxxxxxx Xxxxx Children's Trust
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxxxxxxx X. Xxxxx and Xxxxxxxxx Xxxxx
Xxxx X. Xxxxxxx
Xxxxx Xxxx Xxxxxxxxx'x Children's Trust
Xxxxxxxx X. Xxxxxxxxx
The Xxxxxxxxx Xxxxxxxxx Education Trust
Alexandria H. Xxxxx
Xxxx and Xxx Xxxxxx
Xxxxxx Irrevocable Trust
SERIES A PREFERRED SHAREHOLDERS
Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxx X. XxXxxxx
Xxxxx XxXxxxx
Xxxx X. XxXxxxx, Custodian FBO Xxxxx X. XxXxxxx, UTMA
Xxxx X. XxXxxxx, Custodian FBO Xxxx X. XxXxxxx, UTMA
COMMON STOCK SHAREHOLDERS
Xxxxxxx X. Xxxxxxxx
Xxxxxxxxxxx X. Xxxxxxx
CDW Limited Partnership
Xxxx X. XxXxxxx
Xxxxx X. Xxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxx Xxxx
FOUNDERS
Xxxxxx X. Xxxxxx, Xx.
Xxxx X. XxXxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxxxxxx X. Xxxxxxx
